San Diego Gas & Electric

National Labor Relations Board - Board Decisions

Jul 21, 1998

325 N.L.R.B. 1143 (N.L.R.B. 1998)

1143
325 NLRB No. 218
SAN DIEGO GAS & ELECTRIC
1 The unit found appropriate by the Regional Director is as fol-
lows:
All dispatchers, dispatch assistants, and district clerks em-
ployed by the Employer in its construction and operation dis-
tricts, at the following facilities: Mountain Empire District, Pine
Valley, California; Eastern District, El Cajon, California; Metro
District, 701 33rd Street, San Diego, California; Beach Cities
District, 4848 Santa Fe Street, San Diego, California; North
Coast District, Carlsbad, California; Northeast District, Escon-
dido, California; Orange County District, San Clemente, Califor-
nia; and the Ramona Satellite Office, Ramona, California; ex-
cluding all other employees, clerical employees, professional
employees, guards, and supervisors as defined in the Act.
2 The eight locations are the Metro District and the Beach Cities
District, both located in San Diego; the Eastern District, in El Cajon;
the Mountain Empire District, in Pine Valley; the Ramona Satellite
Office, in Ramona; the Northeast District, in Escondido; the North
Coast District, in Carlsbad; and the Orange County District, in San
Clemente.
San Diego Gas and Electric and International
Brotherhood of Electrical Workers, Local
Union 465, AFL–CIO, Petitioner. Case 21–RC–
19862
July 21, 1998
DECISION ON REVIEW AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX,
LIEBMAN, HURTGEN, AND BRAME
On December 3, 1997, the Acting Regional Director
for Region 21 issued a Decision and Direction of Elec-
tion, in which he directed that an election be con-
ducted among the employees in the unit found appro-
priate.1 No party filed a Request for Review from the
Regional Director’s Decision and Direction of Elec-
tion. On December 9, 1997, the Region notified the
parties that it was considering conducting the election
by mail ballot, and invited the parties to submit posi-
tion statements concerning the appropriateness of a
mail ballot election. The Employer submitted a posi-
tion statement opposing a mail ballot, requesting that
the election be held at two of the Employer’s sites, and
offering to provide transportation as needed or re-
quested. The Petitioner filed a position statement stat-
ing its preference for a mail ballot rather than a man-
ual ballot. On December 18, 1997, the Acting Regional
Director informed the parties that the election would
be conducted by mail ballot, because the 20 unit em-
ployees work at 8 different locations spread across an
area of over 80 miles.
On December 24, 1997, the Employer, pursuant to
Section 102.67(c)(1) and (2) of the Board’s Rules and
Regulations, filed a Request for Review of Regional
Director’s Decision to Conduct Election by Mail Bal-
lot. The ballots for the election were mailed on Janu-
ary 5, 1998, and the election has been conducted and
the ballots have been impounded pending the Board’s
ruling on the Employer’s request for review.
The Employer contends that the Acting Regional Di-
rector’s decision to hold a mail ballot election is con-
trary to the Board’s rules, citing to the NLRB
Casehandling Manual (Part Two), Representation Pro-
cedures (Casehandling Manual), Section 11336, which
states that ‘‘the use of mail balloting, at least in situa-
tions where any party is not agreeable to the use of
mail ballots, should be limited to those circumstances
that clearly indicate the infeasibility of a manual elec-
tion.’’ The Employer contends that infeasibility of a
manual election has not been shown, based on factors
set forth in Section 11336 of the Casehandling Manual,
because the parties have stipulated that ‘‘the employ-
ees in question all ‘work a set schedule’ at essentially
the same time each day.’’
Having duly considered the matter, the Board has
decided to grant the Employer’s request for review,
and, on the merits, to affirm the Acting Regional Di-
rector’s decision to hold the election in this case by
mail ballot.
I. FACTUAL BACKGROUND
The Employer is a utility providing gas and elec-
trical services in San Diego and Orange Counties,
California. The unit which the Petitioner is seeking to
represent consists of some 20 dispatchers who work at
8 locations in southwest California.2
On December 9, 1997, the Region notified the par-
ties by letter that it was considering conducting the
election by mail ballot. The letter solicited the views
of the parties in this regard and also asked each party
to propose ‘‘an appropriate logistical sequence (times
and places)’’ to be followed if the election were to be
conducted manually.
The Petitioner took the position that a mail ballot
election was preferable because the unit employees
were scattered over 8 locations 80 miles apart. In re-
sponse to the Region’s request for a manual election
alternative, the Petitioner submitted two possible sce-
narios for a traveling election, under which a Board
agent would drive sequentially to each of the eight lo-
cations, conducting manual balloting at each.
The Employer responded that a mail ballot was not
appropriate and proposed instead that a manual elec-
tion be held at two locations: its Northeast District of-
fice in Escondido and its Century Park facility in San
Diego. In its letter to the Regional Director proposing
the two-site election, the Employer stated that it would
‘‘provide transportation as needed or requested’’ but
otherwise made no proposals as to how and at what
times the balloting should be conducted. Neither did it
comment on the Petitioner’s suggestion that an eight-
site traveling election would be the best alternative if
a manual election was ordered.
Under the Employer’s proposal, 11 employees
would vote at the Century Park location: 3 from the
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1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The Regional Director first advised the parties that he had de-
cided to conduct the election by mail in a letter dated December 18,
1997. Thereafter, the Employer submitted a request for reconsider-
ation of the decision, to which the Petitioner responded. The Re-
gional Director then reaffirmed his decision in a letter dated Decem-
ber 24, 1997. The reasons for his decision, which we review here,
are set forth in those letters.
4 Contrary to the suggestion of our dissenting colleagues, the
Board employs an abuse of discretion standard in determining
whether to overturn the decision of a Regional Director as to wheth-
er an election should be conducted manually or by mail. E.g.,
Shepard Convention Services, 314 NLRB 689, 690 (1994), enf. de-
nied on other grounds, 85 F.3d 671 (D.C. Cir. 1996); London’s
Farm Dairy, 323 NLRB No. 186 (June 20, 1997). Thus, whichever
party challenges the Regional Director’s decision on the manner of
conducting the election must show that the Regional Director has
abused his or her discretion. The abuse of discretion issue encom-
passes whether the Regional Director acted within the guidelines that
we have outlined in directing a mail ballot election.
Beach Cities office (6 miles away), 4 from the Metro
office (10 miles away), 3 from the Eastern office (14
miles away) and 1 from the Mountain Empire office
(60 miles away). Of the other nine employees, who
would vote at the Northeast District office in Escon-
dido, three work at that location, three would come
from the North Coast office (19 miles away), one
would come from the Ramona office (20 miles away),
and two would come from the Orange County office
(49 miles away).
The Petitioner objected to the Employer’s proposal,
arguing that employees should not be required to travel
such distances to vote. The Petitioner noted that there
was no justification for requiring employees to vote at
the Century Park facility—which it said is the head-
quarters of the Employer’s Labor Relations and
Human Resources departments—because none of the
unit employees work at that location. The Petitioner
also objected to the ‘‘perceived advantage’’ it claimed
the Employer would gain by providing employees with
transportation to the polling sites.
After hearing from both parties, the Acting Regional
Director rejected the Employer’s two-site manual elec-
tion proposal as well as an eight-site traveling election,
which no party preferred, and decided to conduct the
election by mail ballot.3 Citing Section 11336 of the
NLRB Casehandling Manual, which states that the use
of mail ballots should be explored where long dis-
tances are involved or where eligible voters are scat-
tered, the Acting Director noted that both of those fac-
tors are present in this case. A mail ballot election, he
stated, could be accomplished with a minimal expendi-
ture of Agency resources and no employee would be
expected to travel away from his work station to a cen-
tral polling site. In contrast, under the Employer’s two-
site manual election proposal, 17 of the 20 eligible em-
ployees would have to travel to vote in the election—
one of them more than 120 miles round trip. The Act-
ing Director also noted that none of the employees
work at the Century Park location, where the Employer
was proposing that 11 employees be required to vote,
and that the Employer had not responded to the Re-
gion’s request that it propose an appropriate logistical
sequence for a manual election. He estimated that the
other alternative—conducting polling at all eight loca-
tions where the employees work—would require 8
hours of a Board agent’s time, including 4 hours to
travel to each of the sites.
II. DISCUSSION
‘‘Congress has entrusted the Board with a wide de-
gree of discretion in establishing the procedure and
safeguards necessary to insure the fair and free choice
of bargaining representatives by employees.’’ NLRB v.
A.J. Tower Co., 329 U.S. 324, 330 (1946). The Board
in turn has delegated to the Regional Directors discre-
tion in determining the arrangements for an election,
including the location of the election and whether it
should be conducted by manual balloting or mail bal-
lot. Halliburton Services, 265 NLRB 1154 (1982); Na-
tional Van Lines, 120 NLRB 1343, 1346 (1958).4 As
the Board stated in National Van Lines:
[C]ircumstances surrounding working conditions
in various industries require an adaptation of es-
tablished election standards to those peculiar con-
ditions. Because of these circumstances, the Board
has invested Regional Directors with broad discre-
tion in determining the method by which elections
shall be conducted. Only where it is affirmatively
shown that a Regional Director has clearly abused
the discretion afforded him to conduct representa-
tive [sic] elections will the Board nullify an elec-
tion and prescribe other election standards.
A Regional Director’s discretion, however, is not un-
fettered and is to be exercised within certain guide-
lines. Because of the value of having a Board agent
present at the election, the Board’s long-standing pol-
icy, to which we adhere, has been that representation
elections should as a general rule be conducted manu-
ally, either at the workplace or at some other appro-
priate location. The Board has also recognized, how-
ever, that there are instances where the Regional Di-
rector, because of circumstances that would tend to
make it difficult for eligible employees to vote in a
manual election, may reasonably conclude that con-
ducting the election by mail ballot, or a combination
of mail and manual ballots, would enhance the oppor-
tunities for all to vote.
Agency procedures for the conduct of representation
elections, including guidelines for use by the Regional
Director in determining when a mail ballot election is
appropriate, are set forth generally in Part Two of the
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1145SAN DIEGO GAS & ELECTRIC
5 The Casehandling Manual is prepared by the General Counsel for
the purpose of providing guidance to Agency employees involved in
the handling of cases arising under the Act. As to matters on which
the Board has issued rulings, the drafters of the Manual of course
seek to accurately reflect Board law. However, the Manual ‘‘is not
intended to be a compendium of either substantive or procedural
law, nor can it be a substitute for a knowledge of the law.’’
Casehanding Manual, Part Two, Purpose of Manual. Moreover, the
guidelines in the Manual ‘‘are not Board rulings or directives’’ and
‘‘are not intended to be and should not be viewed as binding proce-
dural rules.’’ Id., quoted in VIP Health Care Services v. NLRB, 82
F.3d 1122, 1126 (D.C. Cir. 1996). See also, e.g., Queen Kapiolani
Hotel, 316 NLRB 655 fn. 5 (1995); NLRB v. Black Bull Carting,
Inc., 29 F.3d 44 (2d Cir. 1994); Modern Plastics Corp. v.
McCulloch, 400 F.2d 14 (6th Cir. 1968). Thus, while the
Casehandling Manual can be regarded as generally reflecting Board
policies, in the event of conflict it is the Board’s decisional law, not
the Manual, that is controlling.
6 The Manual should be revised to reflect these guidelines, which
reflect a more flexible standard than has sometimes been inferred
from the sentence in Sec. 11336 of the current version stating that
the use of mail ballots should be limited to circumstances that indi-
cate the ‘‘infeasibility’’ of a manual election. The Board has never
construed the ‘‘infeasibility’’ standard so narrowly as to mean that
mail ballots may be used only if a manual election is incapable of
being accomplished. Rather, as the Board’s decisions in this area re-
flect, and as the Manual provision read as a whole indicates, the use
of mail ballots has been considered appropriate in circumstances
where a manual election might be possible, but would be imprac-
tical, or not easily done. Because, however, the use of the term has
clearly contributed to confusion in this area, it should be deleted
when the Manual is revised.
7 Thus, employees may be deemed to be ‘‘scattered’’ where they
work in different geographic areas, work in the same areas but travel
on the road, work different shifts, or work combinations of full-time
and part-time schedules. The ‘‘scattered’’ criteria are intended to
apply in any situation where all employees cannot be present at the
same place at the same time. See, e.g., London’s Farm Dairy, Inc.,
323 NLRB No. 186 (June 20, 1997); and Reynolds Wheels Inter-
national, 323 NLRB No. 187 (June 20, 1997).
The mere fact that employees may work multiple shifts, thereby
necessitating more than one voting session during the course of the
workday, is not in and of itself a sufficient basis for directing a mail
ballot election. However, as noted below, the Regional Director may
appropriately take into account considerations of economy and effi-
cient use of agency resources where other factors are present that
suggest the propriety of using mail ballots. Thus, for example, where
the holding of a manual election at times and places convenient for
eligible voters would require that voting sessions be conducted at
multiple locations and/or over a period of several days, the Regional
Director, in exercising his discretion as to whether to use mail bal-
lots, may consider such factors as the burden imposed on Board re-
sources where there is a substantial distance between the workplace
and the Regional, Subregional, or Resident Office responsible for
conducting the election.
8 This factor is only to be considered if one or more of the other
factors we have outlined above are present. Accordingly, Regional
Directors should not order mail ballot elections based solely on
budgetary concerns. See Willamette Industries, 322 NLRB 856
(1997).
9 In such a situation, as long as striking employees have not left
the area or taken other employment that would interfere with their
ability to participate in a manual election, we agree with our dissent-
ing colleagues that holding the election at a neutral site would also
be appropriate.
10 Our dissenting colleagues suggest that it would be possible to
hold manual elections in some situations where employees work
multiple shifts, as well as in some strike or lockout situations. We
do not disagree. However, we reject our dissenting colleagues’ ap-
parent premise that a mail ballot election should not be held where
it would be possible to conduct the election manually. A Regional
Director should, and does, have discretion, utilizing the criteria we
have outlined, to determine if a mail ballot election would be both
Continued
NLRB Casehandling Manual.5 This volume of the
Manual has not, however, been revised since 1989, and
therefore does not reflect decisions of the Board issued
since that date. This has resulted in some confusion as
to when it is appropriate to use mail ballots. We there-
fore take this occasion to set forth the following guide-
lines clarifying the circumstances under which it is
within the Regional Director’s discretion to direct the
use of mail ballots. 6
When deciding whether to conduct a mail ballot
election or a mixed manual-mail ballot election, the
Regional Director should take into consideration at
least the following situations that normally suggest the
propriety of using mail ballots: (1) where eligible vot-
ers are ‘‘scattered’’ because of their job duties over a
wide geographic area; (2) where eligible voters are
‘‘scattered’’ in the sense that their work schedules vary
significantly, so that they are not present at a common
location at common times;7 and (3) where there is a
strike, a lockout or picketing in progress. If any of the
foregoing situations exist, the Regional Director, in the
exercise of discretion, should also consider the desires
of all the parties, the likely ability of voters to read
and understand mail ballots, the availability of address-
es for employees, and finally, what constitutes the effi-
cient use of Board resources, because efficient and
economic use of Board agents is reasonably a con-
cern.8 We also recognize that there may be other rel-
evant factors that the Regional Director may consider
in making this decision, but we emphasize that, in the
absence of extraordinary circumstances, we will nor-
mally expect the Regional Director to exercise his or
her discretion within the guidelines set forth above.
In the strike, lockout, or picketing situation, for ex-
ample, the Regional Director may, in his or her discre-
tion, order either a mail ballot or a mixed manual-mail
ballot election in order to insure that eligible voters are
not required to cross a picket line in order to vote,9 or
because striking and locked-out workers have left the
area or taken other temporary employment that makes
it difficult for them to get to the election site to cast
a manual ballot. Similarly, where a significant number
of eligible voters are not scheduled to be at the elec-
tion site at the times proposed for manual balloting—
for such reasons as that they work part-time or on an
on-call basis, or have duties that keep them in the field
for substantial periods of time—the Regional Director
might reasonably conclude that their opportunity to
participate in the election would be maximized by uti-
lizing mail or mixed manual-mail ballots.10
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1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more efficient and likely to enhance the opportunities for the maxi-
mum number of employees to vote.
Contrary to our dissenting colleagues, we do not
agree that the holding of mail ballot elections in cir-
cumstances that fall within these guidelines will inevi-
tably result in more instances of voter coercion, be-
cause a Board agent is not present while the vote is
being cast. In fact, mail ballots have been utilized by
the Board since the NLRA was enacted—and in recent
years in about 2 percent of all elections—and abuses
have rarely occurred. Indeed, as the Board has pre-
viously noted, there has been only one reported case
involving such an abuse in the history of the Act, and
in elections conducted under the Railway Labor Act,
which are routinely conducted by mail ballot, there
have been only three reported cases involving impro-
prieties. See London’s Farm Dairy, supra, slip op. at
2, and cases cited therein.
Neither do we agree that the statistics regarding
turnout at Board-conducted elections cited by the dis-
sent demonstrate that using mail ballots rather than
manual ballots reduces voter participation in elections.
The Board’s experience with representation elections
has shown that the voter participation rate is generally
higher in elections conducted manually than in mail
ballot elections. However, because mail ballot elections
have, by design, largely been limited to situations
where factors were present which were likely to inhibit
voter participation if the election were conducted
manually, there is no reason to believe that participa-
tion in those particular elections would necessarily
have been higher had they been manual elections. See
VIP Health Care Services v. NLRB, supra at 1126 (ex-
pressing doubt whether qualified voters who did not
exert the minimal effort required to fill in and return
a mail ballot would have been more likely to vote in
a manual election where to do so would have required
them to make a special trip to the election site during
off duty hours).
Finally, we reject the dissent’s contention that be-
cause, under the rule in Peerless Plywood Co., 107
NLRB 427 (1953), employers are prohibited from giv-
ing mass ‘‘captive audience’’ speeches to employees
during the period beginning 24 hours before the actual
balloting period begins, the use of mail ballots ‘‘sig-
nificantly silences’’ the employer. We note that during
the Peerless Plywood period, the employer and its
agents remain free to continue to campaign against the
union not only through mailings to employees at their
homes, but also in the workplace, where they can dis-
tribute and post literature, communicate with employ-
ees one-on-one, and even continue to conduct mass
meetings, as long as the meetings are on the employ-
ees’ own time and attendance is not mandatory. Liv-
ingston Shirt Corp., 106 NLRB 400, 408 (1953).
Like our concurring colleague, we know of no rea-
son to believe that employees are less likely to cast
fully reasoned votes in mail ballot elections than in
manual elections, or that employees will be insuffi-
ciently aware of the importance of the choice they are
making absent what the dissenters describe as ‘‘the
symbolism and the drama which accompanies a man-
ual ballot.’’ Consequently, if pursuant to the guidelines
described above, a Regional Director concludes that it
is appropriate to conduct all or part of the election by
mail, we believe that the Board should defer to that
decision.
In directing a mail ballot election in this case, the
Acting Regional Director relied on the fact that the
unit employees are scattered over a large geographic
area, and that adopting the Employer’s proposal would
have required employees to travel long distances from
their work stations in order to vote. We therefore find
that he acted within the scope of his discretion, wheth-
er under the Casehandling Manual provisions as they
are presently worded or under the guidelines we have
set forth above. Section 11336 of the Manual explicitly
states that ‘‘[p]articularly . . . where eligible voters
are scattered because of their duties, the possibility [of
mail balloting] should be explored.’’ Thus, as the
Court of Appeals for the District of Columbia Circuit
has noted, the Manual specifically instructs Regional
Directors in cases such as this to explore the possibil-
ity of mail balloting and to exercise their discretion in
determining whether such an election is appropriate.
VIP Health Care Services v. NLRB, supra at 1126,
1127. On these facts the case also falls within the first
of the three circumstances we describe above as ordi-
narily suggesting the propriety of using mail ballots.
We therefore conclude that the Acting Regional Direc-
tor has acted within the discretion which he has been
afforded to determine the method of conducting the
election, and thus we affirm his decision to hold the
election by mail ballot.
ORDER
IT IS ORDERED that the case is remanded to the
Acting Regional Director for Region 21, with direc-
tions to open and count the ballots in the mail ballot
election, and to take further appropriate action.
CHAIRMAN GOULD, concurring.
I agree with my colleagues’ decision to affirm the
Acting Regional Director’s decision to hold the elec-
tion in this case by mail ballot. I join in their decision
to abandon the ‘‘infeasibility’’ standard set forth in the
Casehandling Manual, and provide guidelines in keep-
ing with the Board’s decisions in this area. Thus, I
agree that a mail ballot is appropriate in those cir-
cumstances cited by my colleagues, namely, where eli-
gible voters are scattered because of their job duties
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1147SAN DIEGO GAS & ELECTRIC
1 As the Board pointed out in London’s Farm Dairy, 323 NLRB
No. 186, slip op. at 2, fn. 2 (June 20, 1997), mail ballots are the
rule and not the exception under the Railway Labor Act. Indeed, the
National Mediation Board (NMB) has conducted all ballots by mail
for more than a decade! The instances of illegal behavior are rare,
as is true under our Act.
2 The participation data for mail ballots cited by the dissent reflects
those cases where the employees are difficult to reach. The bulk of
the postal ballot cases will continue to fall in this category, notwith-
standing the fact that some of them will turn exclusively or primarily
on budgetary considerations.
over a wide geographic area; where eligible voters’
work schedules vary such that they are not present at
a common location at common times; and where there
is a strike, a lockout, or picketing in progress.
Unlike my colleagues, however, I would not limit
the use of a mail ballot to only these circumstances.
I would find the use of mail ballots appropriate in all
situations where the prevailing conditions are such that
they are necessary to conserve Agency resources
and/or enfranchise employees. My colleagues in the
majority state that Regional Directors should not direct
mail ballot elections based solely on budgetary con-
cerns. For the reasons set forth below, I hold a dif-
ferent view. As discussed below, I also reject the dis-
sent’s contentions that an increased use of mail ballots
will diminish the integrity of Board elections, decrease
employee participation or effectively silence the em-
ployer’s voice in the election campaign.
In its recent decisions, the Board has encouraged
greater use of postal ballots with the overriding objec-
tive of expanding franchise so that employees who or-
dinarily have limited or no opportunity to cast a ballot
in a manual election will be able to participate in the
election process. Beginning with Lone Star Northwest,
Inc., 36–RD–1434 (unpublished), the Board has di-
rected mail ballot elections in situations that did not
justify a mail ballot election under the language of the
current representation case manual. See also London’s
Farm Dairy, 323 NLRB No. 186 (June 20, 1997), and
Reynolds Wheels International, 323 NLRB No. 187
(June 20, 1997). In Lone Star, the Board granted the
union’s request for review of a Regional Director’s de-
cision not to order a mail or mixed manual-mail ballot
for economic strikers and striker replacements. Even
though the Board’s Casehandling Manual did not pro-
vide for a mail ballot under these circumstances, the
Board concluded only a mail ballot would enfranchise
the voters who were on strike.
As I have previously observed, the provisions of the
Board’s Casehandling Manual do not constitute ‘‘a
form of authority binding . . . on the Board.’’ See Na-
tional Labor Relations Board Casehandling Manual,
Purpose of Manual; London’s Farm Dairy, 323 NLRB
No. 186, slip op. at fn. 3. See also Shepard Convention
Services, 314 NLRB 689 (1994), enf. denied 85 F.3d
671 (D.C. Cir. 1996). Further, as noted by the major-
ity, although the Manual states that ‘‘the use of mail
balloting, at least in situations where any party is not
agreeable to the use of mail ballots should be limited
to those circumstances that clearly indicate the infeasi-
bility of a manual election,’’ the Board has never held
or construed the Casehandling Manual so narrowly as
to require mail ballots only in situations where it
would be impossible to conduct a manual ballot elec-
tion. Since the provisions of the Casehandling Manual
cannot supercede or substitute for the provisions of the
Act, for formal decisional precedent, or for the Board’s
Rules and Regulations, I agree with my colleagues that
the ‘‘infeasibility’’ standard relied on by the dissent
should be abandoned.
The use of mail ballots in appropriate circumstances
will not only expand employee franchise beyond what
would be provided in a manual election in the same
circumstances,1 but it will conserve Agency resources
in the new period of austerity which we confront. In
London’s Farm Dairy, 323 NLRB No. 186, slip op. at
2, fn.3 (June 20, 1997), and in my concurring opinion
in Williamette Industries, 322 NLRB 856 (1997), I em-
phasized the importance of ‘‘an unduly burdensome
strain’’ on Agency resources as a factor to be taken
into account by a Regional Director in ordering a mail
ballot election. Although my colleagues in the majority
concede that a Regional Director should consider
‘‘what constitutes the efficient use of Board resources,
because efficient and economic use of Board agents is
reasonably a concern,’’ they also find that it cannot be
the sole factor in the decision. I do not understand
what so differentiates budgetary concerns from other
factors that it leads my colleagues to conclude that
budgetary concerns standing alone cannot in any cir-
cumstance justify the direction of a mail ballot elec-
tion. Indeed, in this time of austerity and scarce Agen-
cy resources, it is imperative, as the General Counsel
stated in his directive, that Regional Directors conserve
budget resources wherever and whenever possible in
the exercise of their discretion to establish the mechan-
ics of the election process. See Office of the General
Counsel Field Memorandum OM 98–7, issued January
30, 1998.
The dissent suggests that voter turnout is always
lower in mail ballot elections. However, mail ballots
are generally ordered where it is difficult to obtain
voter participation with a mail or manual ballot, thus
rendering meaningless a direct or raw comparison be-
tween voter participation under mail and manual bal-
lots.2 I find similarly unpersuasive my dissenting col-
leagues’ contention that coercion is inevitable in the
mail balloting procedure. As the Board noted in Lon-
don’s Farm Dairy, in the appropriate circumstances,
eligible voters have been permitted to cast their ballots
by mail since the earliest days of the Act and, in that
time, there has been only one reported instance of
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1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The fact that employers resort to this strategy suggests both that
it is effective and that it is not always redressed by the objection
procedure.
The dissent contends that I am relying on nonrecord ‘‘facts.’’ Con-
gress, however, has entrusted the Board with the ‘‘special function
of applying the general provisions of the Act to the complexities of
industrial life.’’ NLRB v. Erie Resistor Corp., 373 U.S. 221, 236
(1963). And it is precisely because the Board, as Justice Frankfurter
aptly stated, is ‘‘equipped with its specialized knowledge and cumu-
lative experience’’ that the Board’s determinations are accorded def-
erence by the Courts. San Diego Bldg. Trades v. Garmon, 359 U.S.
236, 242 (1959). In the instant case, all I have done is to apply my
cumulative experience in the field of labor-management relations.
The attempt by employers to present a particular image of Board
procedures to employees, which is designed to influence their voting
behavior, is well demonstrated by the following commentary:
The NLRB had designated twenty-six polling places throughout
the Ohio Appalachians and Kentucky, and some of the nine
board agents were afraid to drive their government cars along
the winding, icy roads of those isolated mountain territories.
Their concerns left us an entree to make a pass at the NLRB.
We told the agents that we would gladly drive them to the poll-
ing sites—many of which were out at the pits—in company
four-wheel-drive wagons. When the union activists heard about
our plan, they were outraged and demanded that a union election
observer be allowed to ride alongside the polling agent. We, of
course, refused, threatened to take back our offer if union people
were ordered along. The NLRB denied the union demand. So
on election morning, several polling agents boarded Cravat [the
employer] trucks and headed for the polling sites in the com-
pany of a Cravat driver. That was one more victory for us: in
a union-busting campaign, the relentless accumulation of small
victories leads to the final big win. By the time the balloting
was underway, I had no doubt that the election was ours.
M.J. Levitt, Confessions of a Union Buster, at 31 (New York:
Crown Publishers, Inc., 1993).
In citing this commentary, I do not suggest in any way that my
dissenting colleagues are motivated by a desire to engage in or assist
‘‘union busting.’’ The book, however, highlights techniques by
which the Board’s manual ballot procedures have been manipulated
by sophisticated employers and labor consultants in ways that mail
ballots cannot be manipulated. The dissent’s reliance upon the em-
ployer’s communication avenues in connection with manual and mail
ballots makes the Union Buster commentary relevant. In any event,
as I have stated, my primary reliance is upon my own expertise but-
tressed by numerous conversations with labor lawyers representing
management.
4 107 NLRB 427 (1953). Member Brame questions the validity of
the Peerless rule. See the dissent at slip op. 11, fn. 11. I agree with
Board precedent that the Peerless rule is properly applied to employ-
ers, but I disagree with its application to unions. In my view the in-
terference with a free election condemned in Peerless results from
the combined effect of the last minute character of the speech and
the employer’s economic power over its employees and exclusive
control of the workplace. I would not apply the Peerless rule to a
union’s last minute campaign speech since the union neither wields
abuse. 323 NLRB No. 186, slip op. at 1–2 (citing
Human Development Assn., 314 NLRB 821 (1994)).
The dissent also seems to suggest that unless em-
ployees cast their ballots under the supervision of a
Board agent, the integrity of the election process will
be lost. Again I disagree. The Board rejected a similar
assertion in London’s Farm Dairy, noting that the in-
structions that accompany the ballot specifically in-
structs the employee to mark the ballots in secret and
directs the employee not to show the ballot to anyone
after it is marked. 323 NLRB No. 186, slip op. at 2.
Further, as the Board’s own experience in conducting
manual elections clearly demonstrates, the presence of
a Board agent does not guarantee ‘‘laboratory condi-
tions.’’ See e.g., Modern Hard Chrome Service Co.,
187 NLRB 82 (1970) (election set aside where a single
vote was determinative of the election and the con-
versations of the petitioner’s observer, already criti-
cized by the Board agent, ‘‘culminated in his gratu-
itous offer of a loan to a prospective voter.’’); Inter-
national Stamping Co., 97 NLRB 921 (1951) (election
set aside where during the election, the employer’s ob-
server went through the plant with an eligibility list
calling out the names of prospective voters and check-
ing off each voter’s name as he left to vote); and
Austill Waxed Paper Co., 169 NLRB 1109 (1968)
(election set aside where ballot box left unattended
when an altercation developed outside the polling
place during the voting period and drew the officials
away).
The Board’s purpose in regulating the conduct of
elections is to insure that employees cast an uncoerced
and well-considered vote. Yet, there is nothing to sug-
gest that employees do not cast a fully reasoned vote
in a mail ballot election. My dissenting colleagues in-
voke the ‘‘symbolism and drama which accompanies a
manual ballot.’’ In my view, symbolism is present in
the mail ballot election by virtue of the language of the
ballot and the instructions sent by the Regional Office.
Further, the symbolism of a manual election does not
enjoy any particular advantage over that in a mail bal-
lot election. Indeed, it has one disadvantage in that it
permits employers to attempt to manipulate the sym-
bolism and drama of an in-plant election in order to
gain advantage in the election. Thus, based on my ex-
perience as a practitioner and an academic in the field
of labor law since 1961, and on my many conversa-
tions with management attorneys, I note that some em-
ployers attempt to direct the Board agent and the pro-
cedures surrounding the election in a way that creates
the appearance in the eyes of the employees that their
employer controls not only their salary and benefits
but also the Board’s procedures.3
Noting a limitation on the use of the ‘‘captive audi-
ence speech’’ technique during a mail ballot election,
the dissent states that ‘‘a mail ballot significantly si-
lences one of the campaign voices [i.e., the employer]
during an essential part of the campaign.’’ This asser-
tion is completely without basis inasmuch as it as-
sumes that the employer’s only method of communica-
tion is or should be the captive audience. As the ma-
jority notes, an employer is free to conduct ‘‘captive
audience’’ speeches throughout the campaign period
until the Peerless Plywood4 rule takes effect 24 hours
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1149SAN DIEGO GAS & ELECTRIC
the employer’s economic power nor possesses the employer’s access
to employees.
5 The concerns expressed by the dissent as they relate to commu-
nication opportunities appear to find their basis in this fundamental
difference between mail and manual ballots. In a manual ballot elec-
tion, employers can hold captive audience speeches at a time more
proximate to the actual casting of the ballot by the voter. Cf. Confes-
sions of a Union Buster, supra at 108:
In an NLRB election, we might have felt somewhat secure. Our
plan would have been to keep the warmth and love in focus
until the last ballot was counted, then collect our check and walk
away. But a Railway Labor Act election is done differently, and
it wasn’t going to be easy. Under the railway act, a union elec-
tion is conducted by mail. Voters have two weeks to mark their
ballots and return them to the National Mediation Board.
6 The dissent argues that this ‘‘mail ballot case’’ is not the appro-
priate forum for discussing the issue of the relative ability of the par-
ties to communicate with voters. However, it is my dissenting col-
leagues who rely on what they perceive as an infringement of the
employer’s ability to communicate with employees as a basis to ob-
ject to the increased use of mail ballot elections.
7 Although Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945), allows workplace solicitation by employees, the non-
employee union organizer is for the most part forced to campaign
outside company property.
8 502 U.S. 527 (1992)
9 NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941). See
also NLRB v. Falk Corp., 102 F.2d 383, 389 (7th Cir. 1939) (‘‘The
position of the employer . . . carries such weight and influence that
his words may be coercive when they should not be so if the relation
of master and servant did not exist.’’).
10 See Peoria Plastic Co, 117 NLRB 545, 547–548 (1957), and
Orleans Mfg. Co., 120 NLRB 630 (1958).
11 Excelsior Underwear Inc., 156 NLRB 1236, 1240 (1966).
1 Shepard Convention Services v. NLRB, 85 F.3d 671 (D.C. Cir.
1996).
before the ballots are mailed5 and, during the actual
balloting period, the employer is free to lawfully cam-
paign in the workplace. By decrying the unavailability
of the ‘‘captive audience’’ speech, my dissenting col-
leagues appear to both exalt this right of communica-
tion at the time most propitious to the employer over
all avenues of communication protected by the Act,
and also suggest that unions have the advantage over
employers in communicating with employees concern-
ing their views of representation.6 Neither view is
soundly conceived in terms of the reality of the work-
place and the principles of the Act. Through its exclu-
sive control of company time and property,7 an em-
ployer enjoys virtually complete access to the minds of
its employees during working hours. As the Court
made clear in Lechmere v. NLRB,8 employers are not
required to permit nonemployee union organizers to
enter their property to communicate with employees.
The employer also wields considerable economic
power over its employees who depend completely on
their jobs as their means of livelihood and economic
existence. As a result of this economic power, an em-
ployer’s statement is imbued with a ‘‘force independ-
ent of persuasion.’’9 The union, on the other hand, can
only attempt to convince employees that, if selected as
their collective-bargaining representative, it will obtain
an agreement from the employer that improves wages,
benefits, and working conditions.
The dissent also notes that, during the critical period
prior to an election, the Board permits unions but not
employers to visit individual employees at their homes
to present views on unionization.10 The Board, how-
ever, applies this rule in both manual and mail ballot
elections based on the recognition that
there is a substantial difference between the em-
ployment of the technique of individual interviews
by employers on the one hand and by unions on
the other. Unlike employers, unions often do not
have the opportunity to address employees in as-
sembled or informal groups, and never have the
position of control over tenure of employment and
working conditions which imparts the coercive ef-
fect to systematic individual interviews conducted
by employers. Thus, not only do unions have
more need to seek out individual employees to
present their views, but, more important, lack the
relationship with the employees to interfere with
their choice of representatives thereby. Plant City
Welding & Tank Co., 119 NLRB 131, 133–134
(1957), rev’d on other grounds, 133 NLRB 1092
(1961).
In my view, for the reasons set forth above, a prop-
erly conducted mail ballot election is in many if not
all instances the equal of a manual ballot for achieving
the Board’s statutory goal of ensuring employees the
opportunity to cast their ballots for or against represen-
tation under circumstances free not only from inter-
ference, restraint, or coercion violative of the Act, but
also from other elements that prevent or impede a free
and reasoned choice.11 Accordingly, I affirm the Re-
gional Director’s decision to direct a mail ballot elec-
tion in the instant case.
MEMBERS HURTGEN AND BRAME, dissenting.
1. Introduction
The Board today continues on a path toward greater
utilization of mail balloting. This process began in
Shepard Convention Services, 314 NLRB 688 (1994).
Although the Board’s direction of a mail ballot elec-
tion in that case was reversed by the D.C. Circuit,1 the
Board, undaunted, continued on that path in London’s
Farm Dairy, 323 NLRB No. 186 (June 20, 1997), and
Reynolds Wheels, 323 NLRB No. 187 (June 20, 1997).
The misdirection continues today.
We believe that this direction is contrary to the fin-
est traditions of the Board, and is fraught with peril.
We therefore dissent.
The Board’s policy is set forth in the National Labor
Relations Board’s Casehandling Manual:
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1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The court’s reversal of the Board in Shepard was based upon the
Board’s departure from the Manual.
3 It is no answer to say there have been few occurrences of these
abuses. There have been few instances precisely because, until re-
cently, there have been few instances of mail balloting.
The best place to hold an election, from the stand-
point of accessibility to voters, is somewhere on
the employer’s premises. In the absence of good
cause to the contrary, the election should be held
there.
In addition, Section 11336 provides in relevant part:
[T]he use of mail balloting, at least in situations
where any party is not agreeable to the use of
mail ballots, should be limited to those cir-
cumstances that clearly indicate the infeasibility
of a manual election.
2. Policy considerations
Although the Manual provisions do not have the
binding force of law, they nonetheless reflect the
Board’s historical wisdom of favoring manual elec-
tions.2 That wisdom has its roots in the fundamental
purpose of the Act—to provide for workplace democ-
racy in which employees can select or reject a union
as bargaining representative. At bottom, our difference
with our colleagues is that we believe that manual
elections, as compared to mail ballot elections, are far
more likely to achieve that goal. We would therefore
generally restrict mail ballot elections to those limited
situations mentioned in the Manual.
In view of our difference with our colleagues we be-
lieve that it is important that we emphasize the essen-
tial role that Manual elections play in the realization
of employees’ Section 7 rights. These rights are an-
chored in the opportunity to vote on a collective-bar-
gaining representative, which, in turn, depends upon
the following factors: (1) Communicating to the voters
the importance of the choice they are about to make
(2) secrecy of the ballot; (3) integrity of the voting
process; (4) an absence of coercion on the voter; (5)
maximum participation by the electorate; and (6) full
opportunity for the voter to hear all points of view. In
our view, manual balloting, as compared to mail bal-
loting, is far more likely to achieve these essential ele-
ments of elections.
Nothing emphasizes the importance of the voter’s
choice more than the symbolism and the drama which
accompanies a manual ballot. Employees are first alert-
ed to their forthcoming choice when presented with au-
thorization cards. The drama begins with the
preelection hearing and formal announcement by con-
spicuously posted election notices. Electioneering in-
tensifies until the day before the election. The next day
the Board agent appears, surveys the facility, marks off
the no-campaign areas, and instructs the observers.
Usually with great solemnity and visibility, the agent
seals the ballot box, opens the polls and superintends
the campaign free area. Everything points to the so-
lemnity and importance of the employee’s choice, and
more than any words, this process says to the em-
ployee, ‘‘This is important—so important that the
United States Government has sent its agent to protect
your right to vote in a free and unfettered election.’’
As to secrecy of the ballot, the voter in a manual
election stands in the privacy of the voting booth. No
one can see how he or she votes. In a mail ballot, the
marking of the ballot can occur at any place, public or
private, and it can occur in the presence of another
person or indeed scores of other persons.
With respect to the integrity of the ballot, the Board
agent, in a manual election, monitors closely the entire
balloting procedure. The agent is on site to guard
against improprieties and to observe and report any
that occur. With a mail ballot, there is no such guard-
ian. As the Board has said: ‘‘Mail ballot elections are
more vulnerable to the destruction of laboratory condi-
tions than are manual elections because of the absence
of direct Board supervision over employees’ voting.’’
Thompson Roofing, Inc., 291 NLRB 743 at fn. 1
(1988).
Historically, the Board and its agents have fulfilled
this role in an exemplary fashion. The manual election
is the one area where all sides (management, unions
and employees) traditionally set aside their differences
and uniformly praise the manner in which Board
agents perform their responsibilities. Conversely, if the
election is conducted outside the presence of a Board
agent, the solemnity of the process is lost as ballots are
intermixed with junk mail, and the diffusion of ballot-
ing over time at multiple locations jeopardizes the in-
tegrity of the election process. In short, the manual
election is the Board’s ‘‘crown jewel,’’ and we would
not abandon it unless there is a showing that such an
election is infeasible.
With respect to coercion, the Board agent will not
permit any such coercion to occur during the balloting
process. By contrast, such coercion can easily occur in
a mail ballot situation. An employer or union agent
can stand over the employee and even inspect his bal-
lot to make sure that the vote is ‘‘right.’’ An ‘‘election
party’’ where mail ballots actually are marked can be
held in which there is peer pressure to vote the
‘‘right’’ way. Votes can be bought, with money or
promises, and the purchaser can make sure that he or
she gets what was paid for. These are just a few exam-
ples of potential abuse.3 Even in situations where there
is no employer or union misconduct, an election can
be so highly charged that an employee should be free
to vote his or her preference in a booth, free from the
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1151SAN DIEGO GAS & ELECTRIC
4 Memorandum from NLRB General Counsel Fred Feinstein to
NLRB Chairman William B. Gould IV, dated June 2, 1994.
In Shepard, the participation rate was a mere 18 percent, with the
result that a union was elected with less than 10 percent of those
eligible to vote.
5 Oregon Washington Telephone Co., 123 NLRB 339 (1959).
6 Moreover, a union can visit employees at home; the employer
cannot do so.
oversight and pressures that can exist even in an em-
ployee’s home.
With respect to maximum participation, the figures
speak for themselves. A recent study showed that 87.9
percent of eligible employees participated in manual
elections, and 68.14 percent participated in mail ballot
elections, a difference of almost 20 percent.4
With respect to the factor of full opportunity to hear
all points of view, we note that, under Peerless Ply-
wood, 107 NLRB 427 (1953), the employer is essen-
tially barred from having group meetings with employ-
ees during the 24-hour period before the balloting.
While this rule may make good sense prior to a man-
ual election, the application of that rule to a mail ballot
election makes no sense. The mail ballot election oc-
curs over a period of several weeks, and thus the Peer-
less Plywood rule applies to the entire period begin-
ning 24 hours before the ballots are mailed by the Re-
gional Director and ending with the return of the bal-
lots.5 Thus, a mail ballot significantly silences one of
the campaign voices during an essential part of the
campaign.6 That approach is inconsistent with the goal
of a truly informed electorate.
3. The instant case
In the instant case, a manual election is not infeasi-
ble. For example, a Board agent from the San Diego
office could travel to all eight sites and back to San
Diego. According to the Acting Regional Director,
even after adding time for voting, the entire task (trav-
eling and election) would take about 8 hours. Clearly,
this is not an ‘‘infeasible situation.’’ A Board agent, in
a single day, can accomplish the entire task.
The Acting Regional Director concluded that a mail
ballot was warranted on the basis that the employees
were ‘‘scattered because of their duties,’’ citing a por-
tion of the Manual, Section 11336. We disagree. Un-
like employees whose work causes them to roam over
large distances (e.g., truckdrivers), the employees here
work at fixed sites. The case is not different from any
case involving a multi-site unit. In any event, the sites
are not separated by large geographical distances; the
sites are only 80 miles apart. Further, even if the em-
ployees are ‘‘scattered,’’ within the meaning of the
Manual provision, that same provision goes on to state
that, in such circumstances, ‘‘the possibility [of a mail
ballot] should be explored.’’ And, most significantly,
the Manual thereafter explicitly provides that a mail
ballot should be conducted only if all parties consent,
unless a manual ballot would be infeasible. As shown
above, that is not the case here.
4. Response to majority
In support of their view, our colleagues rely on Hal-
liburton Services, 265 NLRB 1154 (1982), and Na-
tional Van Lines, 120 NLRB 1343 (1958). The cases
are inapposite. In Halliburton, the issue was the time
and place of a manual election. In National Van Lines,
the issue was whether the particular mail ballot proce-
dures devised by the Regional Director were appro-
priate. By contrast, the issue in the instant case is man-
ual balloting as opposed to mail balloting. That matter
is subject to Board policy and practice, as articulated
in the Manual.
Our colleagues point to three situations that, in their
view, ‘‘normally suggest the propriety of using mail
ballots.’’ We will address those situations below. How-
ever, before doing so, we believe that, irrespective of
the criteria used, the burden of proof is on the party
who seeks to depart from the norm, i.e., from the pre-
ferred route of a manual election.
Our colleagues say that the Regional Director has
discretion, and that the burden of proof is on the ap-
pealing party to show an abuse of discretion. We dis-
agree. Concededly, the Regional Director has some
discretion in deciding whether to hold a mail ballot
election. However, as our colleagues recognize, that
discretion ‘‘is to be exercised within certain guide-
lines.’’ In sum, if the Regional Director is acting with-
in those guidelines, he has discretion to order a mail
or manual ballot, and the appealing party must show
an abuse of discretion. But, as to the issue of whether
the Regional Director has acted within the guidelines,
we believe that the burden of proof is on the party
who wishes to depart from the norm of a manual bal-
lot.
With respect to the first ‘‘situation,’’ we would
agree that a mail ballot is generally appropriate where
eligible voters are ‘‘scattered,’’ (i.e., are at many loca-
tions) over a wide geographic area because of their job
duties.
The second ‘‘situation’’ deals with employees who
are ‘‘scattered in the sense that their work schedules
vary significantly.’’ As to these employees, our col-
leagues say that their mail-ballot criteria would apply
‘‘in any situation where all employees cannot be
present at the same place at the same time.’’ We dis-
agree. Thus, for example, a Board agent can conduct
the election in two phases corresponding to two shifts.
And, this would be true, even if the shifts extend to
a second day. Further, even if the election site is geo-
graphically removed from the Regional Office, a Board
agent can make one trip, and can attend to other Board
business during election ‘‘down’’ times. Similarly,
where employees report to a central facility and then
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1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Concededly, if the employees are always on the road, or report
at widely varying times, a mail ballot may be necessary.
8 If a significant number of strikers have left the geographic area,
a mail ballot may be necessary. Similarly, if a significant number
of strikers have interim jobs which preclude their coming to a man-
ual election, a mail ballot may be necessary for them.
9 Of course, there may be instances where the costs are so prohibi-
tive, or the drain on staff-power so substantial, that a mail ballot
election is the only practical alternative. In this footnote, and in the
prior two footnotes, we recognize that mail ballots are sometimes ap-
propriate, even where a manual ballot is theoretically possible. Thus,
the majority has mischaracterized our position.
10 In his concurring opinion, Chairman Gould says that this strat-
egy is effective and is not always redressed by the objection proce-
dure. These ‘‘facts,’’ in turn, are based on the Chairman’s ‘‘many
conversations with management attorneys.’’ We would not rely on
these nonrecord conversations, and thus we cannot find, on this
record, the fact that he has found. Nor would we rely on the anec-
dotal hearsay ‘‘evidence’’ recited in a book called Confessions of a
Union Buster. In our view, major changes in Board policy (e.g. al-
tering the historic role of manual ballots) should not be based on
such a slender reed. In addition, as the Chairman concedes, our posi-
tion in favor of mail balloting is not based on favoring one side or
the other. We simply wish to assure that Board elections are con-
ducted in such a way as to best protect the Section 7 right to vote
freely.
11 Member Brame believes that, given the continued erosion of the
once even-handed Peerless Plywood rule, the time has come to reex-
amine Peerless’ premises in light of current empirical data and to
go on the road, the election can be held at the times
when they report to the central facility.7
As to the third ‘‘situation’’ we do not agree that a
mail ballot is necessitated by a strike, lockout, or pick-
eting. For example, where the strikers all live in the
same small community, they can reasonably come to
a neutral polling place.8
We recognize that it may be cheaper to hold a mail
ballot, as opposed to a manual one, in some of the sit-
uations described above. However, for the reasons dis-
cussed in this opinion, we think that the extra expendi-
ture, if any, is money that is well spent for the attain-
ment of our statutory goal, viz., insuring the integrity
of a free and secret ballot election with maximum par-
ticipation.
We acknowledge that we must be prudent in the ex-
penditure of scarce public resources. At bottom, the
issue is one of establishing priorities among competing
demands on the funds available to the Agency. In our
view, the obligation to insure integrity in the conduct
of elections is perhaps the most important obligation of
the Board. The Board has achieved an excellent record
in this regard. This is due, in no small part, to the in-
tegrity that is ensured by the presence of a Board agent
at a manual election. We think that it would be
‘‘penny-wise and pound-foolish’’ to risk this enviable
record in an effort to achieve some savings.9
Finally, our colleagues’ application of their criteria
to the instant case causes us concern about the criteria
themselves. Our colleagues say that the employees
here are ‘‘scattered over a large geographic area, that
employees would have to travel long distances in order
to vote, and that a manual election would require a
substantial expenditure of Agency resources.’’ None of
this is true. As noted above, a single Board agent can
travel from the Board office in San Diego to all eight
election sites. The entire endeavor would involve 8
hours. In sum, the unit employees will not have to
travel at all; the election will come to them. And the
cost of one Board agent for one day is money well
spent to insure industrial democracy.
5. Response to concurring opinion
Chairman Gould’s concurrence argues that the
Casehandling Manual has been superceded by Shepard
and subsequent Board decisions. However, as noted
above, the Board’s decision in Shepard was reversed
by the circuit court because it departed from the Man-
ual. The Chairman’s subsequent opinions then rely on
the overturned Board decision in Shepard. In these cir-
cumstances, we would not rely on Shepard and the
subsequent cases to say that the Manual has been
superceded. More accurately, it has been ignored.
The concurring opinion suggests that ‘‘some em-
ployers’’ seek to direct the Board agent at a manual
election, so as to make it appear that the employer
controls the Board’s election procedures. Assuming
arguendo that some employers may seek to do this to
achieve a tactical advantage through the Board’s proce-
dures, we have confidence in the ability of the Board
agents to control the situation. Further, to the extent
that the employers succeed in this stratagem, the objec-
tion procedure is always available to redress the situa-
tion.10 Thus, significantly, in manual ballot elections
the presence of a Board agent and the parties’ observ-
ers acts as a deterrent to objectionable conduct and, to
the extent that objectionable conduct may occur in the
polling and adjacent areas, evidence of such conduct is
readily available through the observers. In contrast, in
a mail ballot election, coercion of employees, particu-
larly if it is successful, is far less likely to become
known to the parties and obtaining evidence in support
of objectionable conduct is far more difficult.
The concurring opinion further says that we ‘‘sug-
gest that unions have the advantage over employers in
communicating with employees concerning their views
of representation.’’ The concurrence then goes on to
contend that this is not so. We do not consider this
‘‘mail ballot’’ case to be the appropriate forum in
which to debate which party, if any, has a communica-
tion advantage. Our sole point is that a mail ballot
does not simply change the method of voting; rather,
by extending the Peerless Plywood period, a mail bal-
lot imposes a significant limitation on one party’s
acknowledgeably effective means of communicating
with the employees.11
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1153SAN DIEGO GAS & ELECTRIC
reassess its restrictions on employer free speech in light of First
Amendment jurisprudence.
Finally, the concurrence notes our data (supra)
which show that employee participation rates are high-
er in manual elections than in mail ballot elections.
The concurrence contends that the data can be dis-
regarded because mail ballots are used in cir-
cumstances where it is inherently difficult to obtain
voter participation. He apparently believes that, absent
a mail ballot in these cases, the participation rate
would have been even lower. However, he cites no
data for his thesis. In addition, under his view, a mail
ballot can be held solely for budgetary reasons, i.e.,
when there is no problem of voter participation. We
would not sacrifice employee participation for the sole
purpose of saving money.
6. Conclusion
The manual election lies at the heart of our system
of workplace democracy. It is the cornerstone of this
Agency’s contribution to the successful workings of
that democracy. Because of this, the Agency’s historic
practice has been to hold manual elections, except in
rare circumstances where such elections are not fea-
sible. Those circumstances were not present in
Shepard, and they are not present here. Therefore, in
deference to our values and our traditions, we would
hold a manual election here.
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